Water battle looming

City fighting to defeat bill by State Sen. Jack Taylor

City of Steamboat Springs officials are concerned that a bill sponsored by State Sen. Jack Taylor could hurt the city's recreational water right application.

Taylor, R-Steamboat Springs, has proposed a bill that would limit recreational water rights so that they can be used for only kayaking, and require that at least 10 kayakers be on the water before the water could be released. The bill also stipulates that recreational water right owners control 100 percent of the water they request for use, instead of allowing it to flow unrestricted down the river.

Although the city applied for a recreational water right at the end of 2003, city officials fear the bill could be retroactive and negate or severely limit the city's application.

City Water Attorney Glenn Porzak had even stronger words, calling the bill blatantly anti-recreational, unconstitutional, over the top and extreme by any definition.

Taylor said the bill is an attempt to make municipalities requesting recreational in-channel diversions follow the same regulations as everyone else.

"Junior (water rights) could bump senior water rights and that should not happen," he said. "If (the city) is going to do this, they have to comply with the same rules as everyone else."

On Jan. 18, the City Council agreed to spend up to $3,000 for a lobbyist to help defeat the bill.

The city's application, filed in December 2003, is for a recreational water right on the Yampa River for the D Hole and Charlie's Hole. The two structures are kayaking play holes, but the city's application indicates that the water right also would benefit recreational uses such as tubing, rafting, fishing and canoeing.

The city's application includes a maximum request of 1,700 cubic feet per second in the first half of June and the minimum request for 120 cfs from July 15 to Oct. 31.

Taylor got help in writing the bill from Tom Sharp, a former president of the Upper Yampa Conservancy District.

Sharp said two of the provisions in the bill have the potential to affect the city's recreational water right application and other municipalities that already have been granted recreational water rights.

In a traditional water right, Sharp said ranchers must prove to the division engineer that their head gates can control the water in the river so the flow cannot be channelized or escape downstream. If the water is not controlled, the request to divert the adjudicated water right is denied.

Similarly, the division engineer will not honor a town's request for its water if the river flow is escaping over the roller dam or around the end of the dam, which is used to control the water.

Sharp argues that water intended for kayaking structures denoted in the recreational water right is not controlled. The water is concentrated through a restricted area so the molecules move faster as they go through the kayaking structures.

As written, the bill would require all municipalities with recreational water rights -- to include those that have them now and future holders -- to control the river flow 100 percent. Taylor acknowledged it would be difficult for those who have recreational water rights to meet that requirement.

"That is exactly the point. If you are asking for something that everyone else asking for a call (on the river) must do, why should the city be an exception to that?" Taylor said. "Why should they have an exception from what is Colorado law and what has been the historical pattern for years?"

If a water right is granted, the city also could be affected by a section of the bill that requires at least 10 kayakers to be using the structure when the city makes a request for its water right.

The intent is to ensure that the water is not wasted and goes toward beneficial use, Sharp said. He noted a rancher would have to prove to the division engineer that the water he was diverting as part of his stockwater right was being used for his cattle to drink.

The city most likely would not be affected by a section of the bill that asks to further define recreational in-channel use to mean kayaking, but not tubing, swimming, fishing, boating, rafting or other water related recreational uses.

Even if Taylor's bill passes, the water courts likely will view the city's request under the uses allowed when it applied for the recreational water right in 2003, Sharp said.

The city's application also would not be influenced by the bill's proposal to require the Colorado Water Conservation Board to make written findings about the effect an application for a recreation water right will have on future upstream water storage and water development projects.

The city's application has gone before the state water board, which on May 27 recommended that the district water court deny it.

That portion of the bill would affect upcoming municipalities looking to obtain recreational water rights, such as Silverthorne, Durango and Salida.

Porzak, the city water attorney, is tailoring a letter in opposition to the bill, which he said would have the signatures from Steamboat Springs and many municipalities in Summit, Grand and Eagle counties.

"I think the bill is really dangerous, not just to the town of Steamboat Springs, but to recreation in general," he said.

Taylor said the bill was not targeted at Steamboat Springs and pointed to his long-standing support of the tourism industry.

"I have absolutely nothing against kayaking," Taylor said. "But if someone comes along and wants to change water law against the traditional (uses), there needs to be a reason to do it. All they need to do is play by the same rules."